An attorney in ASSUMPSIT for an attorney's bill. Plea—a tender

a cause is not answerable for

the absence, neglect, or want of attention in the counsel engaged in it.

as to part, and non-assumpsit as to the residue. Replication-denying the tender.

The only part of the plaintiff's demand which was in dispute, was for business done in a suit in equity, in which the present defendant was the plaintiff, the present plaintiff being his solicitor. It was proved that the cause in equity was in the paper for hearing in the Vice-Chancellor's Court on the 26th of February, 1830, and that a brief in that cause had been delivered to an eminent counsel at the equity bar on the 11th of that month; and a clerk of the plaintiff's town agent gave evidence as follows:-"I attended the Vice-Chancellor's Court on the 26th February, 1830. I did not see our counsel. The cause was five off, and I went to search for him at the Rolls' Court. The Vice-Chancellor was sitting in Lincoln's Inn, and the Master of the Rolls at the Rolls' Court, in Chancery Lane. I could not find our counsel at the Rolls' Court,

and I went back to the Vice-Chancellor's Court. I was away less than ten minutes; and on my return I found that the cause had been struck out of the paper with others that stood before it. In about five minutes after I heard our counsel address the Court to restore the cause, but he did not succeed in his application."

Sir J. Scarlett, for the defendant.-The fault here was in the clerk's going away; if he had stayed and said what counsel was in the cause, the counsel would have been sent for. In the King's Bench, if the attorney and counsel are both absent the case is lost, and no new trial will be granted; but if the attorney stays, and says that his counsel is at the Rolls', or any other Court near, he would be sent for, instead of the cause being struck out. There has been a tender of all but this part of the bill; and it has been held that if there is no beneficial service, nothing is to be paid. Here there was no service by reason of the negligence of the attorney.

The tender of the remainder of the demand was proved.

Alexander, in reply. If the attorney's clerk had sat still instead of going to look for his counsel, it would have been said that he ought to have gone to fetch his counsel. I submit that the clerk did what a prudent man would do, for he went for his counsel when the cause was five off.

Mr. Justice TAUNTON (in summing up).—The question here is, whether you are satisfied that the plaintiff did not use due diligence; and that, instead of using due diligence, he was guilty of gross negligence; and that, in consequence of such negligence, the cause miscarried. It appears that the plaintiff delivered a brief in the equity cause on the 11th February, which was fifteen days before the cause came This was certainly no want of diligence. I do not know the practice of the Court of Chancery, but briefs at

on.

1832.

LOWRY

บ.

GUILFORD.

1832.

LOWRY

บ.

GUILFORD.

law are generally delivered later than that; and it further
appears, that, when the cause was five off, the attorney's
clerk went to look for his counsel at the Rolls' Court; and
that, being unable to find him, he returned in less than ten
minutes. Here I must ask you if this was gross negligence
either in the attorney or his clerk. The counsel who
practise in equity are in the habit of going from one Court
to the other, and neither the clerk nor the attorney could
go and say to a gentleman of the bar there-" You must
not go to the Rolls' Court, as my cause in the Vice-Chan-
cellor's Court is only five off;" he could not do that, and,
as other causes were struck out which stood before this,
the probability is, that, if those causes had been heard,
this cause would not have met with the fate it did. It is
further proved, that the counsel asked to have the cause
restored, but was unsuccessful. You are therefore to say
whether this misfortune which befel the present defen-
dant, as a party in the equity suit, was not the result of
an accident over which the attorney had no control. The
attorney is not answerable for the neglect or want of at-
tention in the counsel. He acted for the best in going
for his counsel to the Rolls' Court, and it was from an
anxiety on his part that he did so.
He is not, I repeat,
answerable for the absence of his counsel, and his own
absence was only caused by his trying to find the coun-
sel. You will, therefore, say whether the attorney was
guilty of gross negligence.

Verdict for the defendant.

R. Alexander and R. C. Nicholl, for the plaintiff.
Sir J. Scarlett and Cresswell, for the defendant.

[Attornies-Lowry & W., and Francis.]

Alexander, on a subsequent day in the term, applied for a rule nisi for a new trial, on the grounds, that the verdict was against evidence and against the opinion of the

learned Judge. The Court granted a rule, which was afterwards made absolute (a).

(a) For this information respecting the result of the motion, we are indebted to the kindness

of one of the learned counsel en-
gaged in it.

1832.

LOWRY

v.

GUILFORD.

Sittings at Westminster, after Easter Term, 1832.

BEFORE MR. JUSTICE PATTESON,

(Who sat for the Lord Chief Justice.)

PAUL v. WHITE.

May 14th.

ASSUMPSIT by an indorsee against the acceptor of a If a letter be

bill of exchange.

A witness, named White, was called for the defendant. He was asked by Sir J. Scarlett, on the voire dire, whether he had not given a guarantie to the defendant for the payment of this bill; and a letter written by him, containing the guarantie, was put into his hand. It was admitted that this made him interested, and the witness was released by the defendant, and was examined.

shewn to a witness for the

defendant, on

the voire dire,

to make out interest, and

that he has an

the witness be released and

examined, the Judge will not prevent the plaintiff's counsel from observing on this letter in his

Sir J. Scarlett, in his reply, commented on the terms reply. of this letter.

F. Pollock, for the defendant.-I submit that the other side have no right to make any comment on this letter. It was not evidence in the cause. If it had been, it should have been read, and I should have been at liberty to have observed on it. The letter was merely put in to satisfy your Lordship, that the witness had an interest, and was incompetent. It was not read as evidence to be considered by the Jury.

1832.

PAUL

v.

WHITE.

Mr. Justice PATTESON.—I am of opinion, that, as the document was put in, I cannot prevent the plaintiff's counsel from observing on it.

Verdict for the plaintiff.

Sir J. Scarlett and Moody, for the plaintiff.

F. Pollock, for the defendant.

[Attornies-V. S. Reynolds, and Pasmore & T.]

April 17th.

BEFORE MR. JUSTICE TAUNTON,

(Who sat for the Lord Chief Justice.)

DAGLEISH, Assignee of BURGE, an Insolvent, v. DODD.

In an action by WORK and labour by the insolvent as a builder. Plea

the assignee of
an insolvent, a
letter written by
the defendant
was given in
evidence; on
the back of it
something had
been written by
the insolvent:-
Held, that the
defendant's
counsel were
entitled to have
that read.

General issue.

On the part of the plaintiff, a letter, written by the defendant, was put in and read. On the back of it was something which had been written by the insolvent.

F. Pollock, for the defendant, wished to have that read also.

Thesiger, for the plaintiff.-I submit that what the insolvent writes is not evidence; and even if it were, the defendant must give it as his evidence.

F. Pollock.-If the paper is put in, I am entitled to have the whole of it read.

Mr. Justice TAUNTON.-I think so: you produce the paper, and if you put it in, the other side have a right to have the whole of it read.